Oldfield v. Pulver CA2/6 ( 2021 )

Filed 12/16/21 Oldfield v. Pulver CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
DAVID OLDFIELD, 2d Civ. No. B307849
(Super. Ct. No. 19CV05202)
Plaintiff and Respondent, (Santa Barbara County)
v.
DAVID ERIC PULVER,
Defendants and Appellant.
David Oldfield and David Eric Pulver have known each
other for decades. A few years after a contentious encounter at a
7-Eleven, they met at the Cold Spring Tavern (Tavern) in Santa
Barbara. During a fight, which also involved James Robert
Anderson, Oldfield threw Pulver into a creek bed. When Pulver
emerged from the creek bed, he hit Oldfield over the head with a
tree branch. Pulver claimed Oldfield punched him first, but
Oldfield testified he was being restrained by a third party.
Oldfield suffered a concussion and traumatic brain injury.
The trial court granted Oldfield’s petition for a three-year
civil harassment restraining order against Pulver (Code of Civ.
Proc., § 527.6),1 but observed “that the conduct of all of these
parties is pretty reprehensible, and it reminds me of adolescent,
junior high boys. And given the ages of the parties involved,
certainly, they should have been exercising more maturity and
better judgment than has occurred . . . .”
Pulver contends the trial court erred in issuing the
restraining order because he acted in self-defense and in defense
of others, and because there was no evidence of a threat of future
harm. We affirm.
FACTUAL BACKGROUND
Oldfield met Pulver through a mutual friend. Oldfield
would “hang out” at Pulver’s upholstery shop and sometimes do
odd jobs to earn extra money. He stopped going to the shop about
10 years before the fight occurred.
A few years earlier, Oldfield saw Pulver at a 7-Eleven.
Pulver testified that he invited Oldfield back to his shop, and that
Oldfield was rude to him. Oldfield testified that Pulver called
him “Oafie,” which he found offensive. Oldfield refused the
invitation and walked off.
James Robert Anderson met Oldfield through Pulver. In
2018, Anderson sold a motorcycle to Oldfield. Thereafter, the two
had an ongoing, unresolved conflict regarding the motorcycle’s
mileage. Oldfield filed a complaint with the Sheriff’s Office
alleging Anderson’s harassment of him. Oldfield was frightened
of Anderson and bought a can of pepper spray for protection.
Anderson typically goes to the Tavern every Sunday. On
August 25, 2019, he went there to meet friends. Anderson went
1All statutory references are to the Code of Civil Procedure
unless otherwise stated.
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up to the “smoking circle” when he heard Oldfield was there.
Anderson confronted Oldfield when he was about 15 feet away
from him. He called Oldfield by his street name and asked him if
he had called the cops on anybody that week. According to
Oldfield, Anderson said he was going to kick his ass. When
Anderson was about 12 feet away, Oldfield stood up and pulled
the can of pepper spray out of his pocket. He pointed it at
Anderson and told him to back away. Anderson testified that
Oldfield said he was going to spray him.
Although Pulver did not know what was happening
between Anderson and Oldfield, he “took it upon [himself] to
defend [himself] and [Anderson] from an attack.” What
happened next is disputed. Pulver testified that he “disarm[ed]”
Oldfield by hitting his wrist and that Oldfield responded by
throwing him into the nearby creek bed. Oldfield testified that
Pulver jumped on his back and took him face first to the ground
while punching him. Oldfield rolled out from under Pulver and
threw Pulver away from him. Anderson saw Pulver land in the
creek bed.
Oldfield testified that another person then kicked him in
the crotch and began punching him. While Oldfield was being
restrained by this “third party,” he saw Pulver emerge from the
creek bed with a tree branch, about 3 to 4 inches in diameter.
Pulver hit Oldfield on the head with the tree branch, breaking it.
Oldfield felt excruciating pain and became dizzy. Pulver testified
that Oldfield then “kneeled down,” and when he tried to get back
up, Pulver “tried to hold him in place.”
A security guard separated Oldfield from Pulver and the
third party while Pulver continued to swing at Oldfield, who was
bleeding profusely. Pulver claims no third party was involved.
The security guard took Oldfield into the restaurant to rinse the
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blood from his eyes. An ambulance took Oldfield to the hospital,
where he received stitches and diagnostic tests. His primary care
physician diagnosed him with a concussion and traumatic brain
injury.
DISCUSSION
A. Standard of Review
Section 527.6 authorizes a person who has suffered
harassment to “seek a temporary restraining order and an order
after hearing prohibiting harassment.” (Id., subd. (a)(1).) The
statute defines harassment as “unlawful violence, a credible
threat of violence, or a knowing and willful course of conduct
directed at a specific person that seriously alarms, annoys, or
harasses the person, and that serves no legitimate purpose. The
course of conduct must be that which would cause a reasonable
person to suffer substantial emotional distress, and must actually
cause substantial emotional distress to the petitioner.” (Id.,
subd. (b)(3).) At the hearing on a section 527.6 petition, the trial
court “shall receive any testimony that is relevant, and may
make an independent inquiry. If the judge finds by clear and
convincing evidence that unlawful harassment exists, an order
shall issue prohibiting the harassment.” (Id., subd. (i).)
“We review issuance of a protective order for abuse of
discretion, and the factual findings necessary to support the
protective order are reviewed for substantial evidence.” (Parisi v.
Mazzaferro (2016) 5 Cal.App.5th 1219, 1226, disapproved on
other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989,
1010, fn. 7.) “‘The appropriate test on appeal is whether the
findings (express and implied) that support the trial court’s entry
of the restraining order are justified by substantial evidence in
the record. [Citation.] But whether the facts, when construed
most favorably in [the petitioner’s] favor, are legally sufficient to
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constitute civil harassment under section 527.6, and whether the
restraining order passes constitutional muster, are questions of
law subject to de novo review.’ [Citation.]” (Harris v. Stampolis
(2016) 248 Cal.App.4th 484, 497 (Harris).)
B. Substantial Evidence Supports the Trial
Court’s Implied Findings
Neither party requested a statement of decision. “Under
the doctrine of ‘implied findings,’ when parties waive a statement
of decision expressly or by not requesting one in a timely manner,
appellate courts reviewing the appealed judgment must presume
the trial court made all factual findings necessary to support the
judgment for which there is substantial evidence.” (In re
Marriage of Condon (1998) 62 Cal.App.4th 533, 549, fn. 11; In re
Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1248.) “A
party who does not request a statement of decision may not argue
the trial court failed to make any finding required to support its
decision.” (McHugh, at p. 1248.)
Pulver contends substantial evidence does not support a
finding that he committed unlawful violence (§ 527.6, subd.
(b)(3)) or that there was a threat of future harm. He claims no
evidence of harassment existed at the time of the court hearing.
Under the doctrine of implied findings, we must presume
the trial court made all factual findings necessary to support its
order. The only question before us is “whether substantial
evidence supports [those] implied factual findings.” (Fladeboe v.
American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48.) We
conclude that it does.
1. Unlawful Violence
“‘Unlawful violence’” is defined as “any assault or battery,
or stalking as prohibited in Section 646.9 of the Penal Code, but
does not include lawful acts of self-defense or defense of others.”
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(§ 527.6, subd. (b)(7); Harris, supra, 248 Cal.App.4th at p. 497.)
Pulver, Anderson and Oldfield presented different versions of the
Tavern altercation. They all acknowledged, however, that Pulver
hit Oldfield over the head with a tree branch, which caused
substantial injury. Although Pulver claims he was acting in self-
defense or in defense of Anderson, the trial court was entitled to
believe Oldfield’s version. He testified that the tree branch
attack was unprovoked and that he was being battered and
restrained by a third party at the time of the attack. Indeed,
Pulver admitted that Oldfield did not attack him while he was in
the creek bed, and Anderson stated he was turning to leave when
he heard Pulver hit Oldfield with the tree branch. This is
sufficient evidence of unlawful violence to justify the restraining
order. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [“‘The
testimony of a witness, even the party himself, may be
sufficient’”]; Doe v. Regents of University of California (2016) 5
Cal.App.5th 1055, 1074 [“[T]he testimony of a single witness,
even that of a party, is sufficient to provide substantial evidence
to support a finding of fact”].)
2. Threat of Future Harm
A prohibitory “injunction restraining future conduct is only
authorized when it appears that harassment is likely to recur in
the future.” (Harris, supra, 248 Cal.App.4th at p. 499; Russell v.
Douvan (2003) 112 Cal.App.4th 399, 400 (Russell).) Accordingly,
“a single act of harassment alone cannot justify a restraining
order” unless there is a reasonable probability that the
harassment will recur. (Harris, at p. 499; Russell, at p. 404.) In
determining whether the record contains substantial evidence of
a reasonable probability that an unlawful act will occur in the
future, we consider “‘the nature of the unlawful violent act
evaluated in the light of the relevant surrounding circumstances
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of its commission and whether precipitating circumstances
continue to exist so as to establish the likelihood of future harm.’”
(Harris, at pp. 499-500.)
Since the trial court issued a restraining order, we infer
that it impliedly found it was reasonably probable that future
harassment would occur. (Harris, supra, 248 Cal.App.4th at pp.
500-501.) Nothing in the record suggests that the court
misunderstood the law in rendering its ruling, and the parties do
not argue that it did. This case differs from Russell, supra, 112
Cal.App.4th 399, on which Pulver relies. There, the court
reversed the order granting an injunction because the trial court
erroneously believed it was required to issue an injunction based
on a single act of past unlawful violence. (Id. at p. 404.)
Here, the circumstances surrounding the tree branch
attack on Oldfield support the trial court’s implied finding that
there was a reasonable probability of the harassment recurring in
the future. Pulver and Oldfield have known each other for years,
have mutual friends and frequent some of the same places. It is
therefore likely they will cross paths again. (Harris, supra, 248
Cal.App.4th at p. 501 [implied finding of likelihood of future
harassment supported by likelihood that the restrained person
and the protected person would have future interactions].)
Pulver testified that he did not regret attacking Oldfield.
Thus, the record supports a reasonable inference that the
circumstances that led to the attack – namely, a distinct animus
towards Oldfield — continue to exist and demonstrate a
reasonable probability of future harassment. This is especially
true given the parties’ lack of maturity and judgment in dealing
with one another.
Finally, Pulver asserts that the restraining order is
unwarranted because he had not assaulted or contacted Oldfield
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since the August 2019 Tavern incident. The record reflects,
however, that a temporary restraining order was in place
prohibiting contact. “[I]t would be ‘anomalous to require the
protected party to prove further [harassment] occurred in order
to justify renewal of [that] original order. If this were the
standard, the protected party would have to demonstrate the
initial order had proved ineffectual in halting the restrained
party’s [harassing] conduct just to obtain an extension of that
ineffectual order. Indeed the fact a protective order has proved
effective is a good reason for seeking its renewal. [Citation.]”
(Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 91.)
DISPOSITION
The civil harassment restraining order is affirmed.
Oldfield shall recover his costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Donna D. Geck, Judge
Superior Court County of Santa Barbara
______________________________
Sanger Swysen & Dunkle, Miguel A. Avila, for Defendant
and Appellant.
Law Office of Bradford D. Brown, Bradford D. Brown; Legal
Aid Foundation of Santa Barbara County, Stacy Robinson, for
Plaintiff and Respondent.
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